2014 (1) TMI 1020 - HC - Customs

Issue of writ of habeas corpus - Denial of release of detenue - Recovery of gold smuggling - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - whether the detention order dated 11.06.2013 had been passed on several grounds or is a composite order where two or more facts have been taken into consideration - whether the Bail Order dated 26.05.2009 passed by the Delhi High Court in the previous criminal case and the replies to the three show cause notices filed by the Detenue, in view of the Detaining Authority having considered the three show cause notices, were vital and important material, non-consideration of which would vitiate the order of detention - Held that - previous order granting freedom to the Detenue by any Court was a relevant material to affect the subjective satisfaction of the Detaining Authority one way or the other - Bail Order dated 26.05.2009 passed by the Delhi High Court in the earlier case under the Customs Act was vital and relevant material to be considered by the Detaining Authority before passing the detention order. The Bail Order having not been considered, the detention order is vitiated and is liable to be set aside. While passing the detention order, the Detaining Authority considered the previous conduct of the Detenue and assessed the propensity of Detenue s conduct. As has been observed earlier, in some cases a single act may be sufficient to pass an order of detention - replies to the show cause notices were not considered by the Detaining Authority. In fact, the same were not even placed before it - A perusal of the detention order falsifies the stand of the Respondents that the three show cause notices were not taken into consideration by the Detaining Authority while passing the order of detention. The Detaining Authority goes on to mention that the adjudication order in question had not attained finality as an appeal had been preferred by the Commissioner of Customs before CESTAT, New Delhi. The replies to the three show cause notices have been placed on record by the Detenue. There were serious allegations of illegal import of high end gold jewellery and misuse of SEZ facility against the Detenue and others. Show cause notice is a charter of allegation and by replies to the notices, the Detenue claimed innocence and therefore, the replies to the show cause notices were vital, important and relevant material to be considered by the Detaining Authority. By considering only the show cause notices against the Detenue without considering these replies, there was a serious prejudice caused to the Detenue as we do not know how the Detaining Authority would have reacted on considering the replies. Show cause notices and particularly the Detenue s replies thereof were the most relevant and essential material to be placed before the Detaining Authority before issuance of the detention order - there is no escape from the conclusion that all the relevant and vital material/documents were not placed before the Detaining Authority. The detention order is consequently vitiated; the same is accordingly set aside - Decided in favour of Petitioner.

Issues Involved:
1. Legality and arbitrariness of the detention order.
2. Non-consideration of relevant and vital material by the Detaining Authority.
3. Non-supply of essential documents to the Detenue.
4. Alleged procedural lapses and non-application of mind by the Detaining Authority.
5. Impact of previous bail orders and replies to show cause notices on the detention order.

Detailed Analysis:

1. Legality and Arbitrariness of the Detention Order:
The petitioner challenged the detention order on grounds of illegality and arbitrariness, claiming it was passed without due consideration of laws and regulations. The Detaining Authority allegedly failed to consider proceedings against the foreign diplomat involved, and the absence of such information vitiated the satisfaction of the Detaining Authority.

2. Non-Consideration of Relevant and Vital Material:
The court emphasized that the subjective satisfaction of the Detaining Authority is vitiated if material or vital facts that could influence the decision are ignored or not considered. The Detaining Authority must exercise due care and caution, acting fairly and justly. The absence of consideration of the Bail Order dated 26.05.2009 and replies to the three show cause notices was deemed a significant omission.

3. Non-Supply of Essential Documents:
The petitioner argued that the non-supply of essential documents, including the proceedings of seizure and the forensic examination of the mobile phone, deprived the Detenue of the right to make a purposeful representation. The court held that all relevant documents must be supplied to the Detenue to enable an effective representation.

4. Alleged Procedural Lapses and Non-Application of Mind:
The petitioner contended that the Detaining Authority failed to focus on relevant facts and passed the detention order mechanically. The court noted discrepancies in the timing of e-mails and procedural lapses in the seizure of mobile phones, which indicated non-application of mind by the Detaining Authority.

5. Impact of Previous Bail Orders and Replies to Show Cause Notices:
The court held that the Bail Order dated 26.05.2009 and the replies to the show cause notices were vital and relevant materials that should have been considered by the Detaining Authority. The non-consideration of these documents prejudiced the Detenue and vitiated the detention order.

Conclusion:
The court concluded that the detention order was vitiated due to the non-consideration of vital material and procedural lapses. The Detenue was ordered to be released forthwith.

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